Recent Ontario rulings have opened the doors for future cyber-harassment cases, renewing debate on how to protect victims without over-policing people’s online conduct.
In January, the Ontario Court of Justice ruled in favour of Gregory Alan Elliott, who was charged in November 2012 with criminal harassment via Twitter. Elliott’s 2012 bail conditions barred him from owning a smartphone or using a computer with internet access. Justice Brent Knazan ruled that Elliott’s offensive tweets did not constitute criminal harassment, finding the plaintiffs did not reasonably fear for their safety.
While this was not the first Twitter harassment case in Canada, it highlights the challenges of cases that unfold entirely online. “One cannot understand this case without knowing about Twitter,” stated Justice Knazan in his ruling, which also included a detailed analysis of hashtag use.
Ontario’s former privacy commissioner, Ann Cavoukian, sees Nova Scotia’s Cyber-safety Act, which was struck down in December, as a well-intentioned disaster, and believes other jurisdictions will think twice before enacting laws to deal with cyberbullying. She is not convinced that Ontario needs new legislation to combat it.
Cavoukian cites past amendments to Ontario’s Education Act (which made electronic bullying subject to investigation and punishment by school officials) as a preferred route to a more wide-reaching law.
Brendan Crawley, media spokesperson for Ontario’s Ministry of the Attorney General, says that, “In the months ahead, Ontario will continue to ensure that cyber-bullying is addressed through education, mental health supports, victim supports and our laws.”
He cites the ministry’s role in the passage of Bill C-13, the federal law that criminalizes the non-consensual distribution of intimate images. In 2013, Ontario was part of a working group to identify potential gaps in Canada’s Criminal Code related to cyberbullying. The group concluded that existing offences “generally cover most serious bullying behaviour, and a new specific Criminal Code offence of bullying or cyberbullying is not required,” but that there was a gap regarding intimate images.
As privacy commissioner, Cavoukian was an outspoken critic of the bill’s provisions expanding police powers, including lower thresholds for obtaining warrants and immunity for ISPs that voluntarily disclose information without a warrant. Bill C-13 has been in effect since March 2015.
Although it did not deal with a cyberbullying case per se, a recent ruling from the Ontario Court of Justice may provide civil recourse for victims of such crimes. The plaintiff, Jane Doe 464533, sued her ex-boyfriend for posting an intimate video of her in 2011 without her knowledge or consent. In January, Justice David Stinson found that among other issues, the defendant unreasonably invaded her privacy through “the public disclosure of embarrassing private facts,” and ordered him to pay $141,708.03 to the plaintiff.
At the time the video was posted, Bill C-13 was not in effect, but importantly, even if it had been, a criminal sentence for him would not automatically result in compensation for her.
“While this case may be novel,” stated Stinson, “it should serve as a precedent to dissuade others from engaging in similar harmful conduct.”
The federal government has since issued a call for proposals to evaluate the incidence of cyberbullying in Canada, as well as the efficacy of possible prevention methods that do not necessarily warrant new laws, like apps encouraging kids to think twice before posting hurtful comments. Data collection is slated to begin in September.
Toronto Police Constable Laurie McCann educates schools, parents, and law enforcement on cyber-safety issues. McCann, who has dealt with cyber-harassment cases on the force, believes a major difference between offline bullying and cyberbullying is that the latter transcends the schoolyard, amplifying its harmful effects. “[Cyberbullying] can go worldwide… in an instant.”
McCann considered the Nova Scotia law a step in the right direction, saying, “Anything that protects victims is a good thing.” Yet she believes education remains the first line of defence against cyberbullying.
“We’re kind of behind,” says Detective Alpha Chan about law enforcement’s ability to tackle online crime, given relatively low reporting rates and the speed of technological advances compared to organizational change. Chan is a member of C3, the Toronto Police cybercrimes [special operations] unit consisting of 10 to 15 officers and civilian analysts who provide tech expertise to criminal investigations as needed.
According to Chan, C3 has dealt with approximately 1,400 cases since its 2014 inception, of which he estimates 50 to 100 cases involved aspects of cyber-harassment. Chan says a large part of the unit’s work involves helping fellow officers navigate social media.
McCann suggests that parents stay up to date on the websites their kids use, and recommends the Toronto-based app VISR to receive notifications when their child’s social media accounts contain language the app deems a red flag.
“Criminality on the internet is still very new for everybody,” says McCann, who points out that “cyberbullying is not a crime – it’s a term.”
Ontario, meanwhile, will continue to prosecute cases involving cyberbullying, says Crawley, “where there is a reasonable prospect of conviction and it is in the public interest to do so.”
news@nowtoronto.com | @nowtoronto
